Page 512 (PLP)

The appellant has supported the contents of his written statement in his affidavit in evidence. He has also produced the money order coupon, showing that the rent for August and September, 1983 was sent on 15‑10‑1983. He has also produced receipts regarding payment of rent in Court. In cross‑examination he has deposed that the rent collector of the respondent used to sit in the same building. He had taken the above shop on rent from 1‑1‑1983. He paid rent from January, 1982 to July, 1983 to the rent collector and obtained receipt. According to him, he paid rent for July and August to the landlord himself. He never paid rent to the landlord before that. The rent collector refused to accept rent for the month of August 1983, hence he went to the owner personally. He has admitted a suggestion that he had not offered rent for August, 1983 to the rent collector and it may have been missed in mentioning the same in my written statement and affidavit. It may be inadvertent mistake. He sent rent for August, 1983 by money order on 15‑10‑1983. He has denied a suggestion that the landlord had gone to him before filing of this case to enhance the Pagri and rent. Again stated, that it is written in the affidavit that application has asked him to enhance rent and Pagri before filing of this case. From the above evidence produced by parties it is clear that the rent for August, 1983 was offered by the appellant to rent collector Masoodullah, in September, 1983 but he refused to accept the same, as according to him, the opponent had sub‑let the premises to one Javed. It is also an admitted position that the opponent had sent rent of August and September, 1983 by money order but the same was refused by Masoodullah rent collector of the respondent. It has also been admitted by the respondent and his rent collector that appellant had deposited rent for August and September, 1983 in the Court in the month of November, 1983, the appellant has produced‑ M.O. Coupons as Exhs. O/1, O/2 receipt for 3 months rent Exh. O/3. It will be worthwhile to mention here that the ejectment application was filed on two‑fold grounds i.e. sub‑letting and default. As far as the ground for sub‑letting was concerned, the same was decided ‑against the respondent. However, the ejectment was allowed on the ground of default only. In the case of Amir Ali and 2 others v. Jan Company, 1987 CLC page 442, it was observed by this Court that:‑ "The rent was offers tl by the tenant to landlord's rent collector and same was not accepted by hint, case of wilful default nr>t proved against tenant, and the Rent Controller held, was justified in exercising discretion in favour of tenant in not ordering the ejectment.' In the case of Zohra Begum v. Pakistan Burmah Shell Limited, 1984 CLC 2769, it was observed by this Court that:‑ "The appellant's refusal to accept rent from the respondent being without justification, would not entitle her to seek ejectment of the respondent on the ground of default in payment of rent. This finds further support from well‑known maxim of law `no man can take advantage of his own wrong'. Accordingly the appellant who refusgd"to accept rent cannot be permitted to take advantage of her refusal and sue the respondent for ejectment on the ground of default in payment of rent." 3.???????? In the case of Inayatullah v. Zahiruddin, 1987 SCMR 1313, wherein the High Court had observed that:? ??????????? "In cross‑ examinati‑s, ;?n:: petitioner/respondent had admitted that the"X _????????? rent of two months was sent to him by the tenant through money order and the same was returned by him as refused and unpaid however, he has not uttered a single word about the alleged wilful and deliberate 5 ?'' default. This shows that the respondent deliberately created di!‑culties , ins the way of the appelrant by not accepfng the. rent m the hope that same omission or slip on the part of the appellant may enable him to crave out a ground for their eviction. And the appellants realised the situation and being conscious of their .liability continued to pay rent properly. The conduct of the appellants indicates no element of negligence on their part. As soon as respondent refused to receive the rent, the appellants reasonably adopted the alternate prescribed mode of tendering the rent by way of deposit in the Court and, therefDre, appeal of tenants was allowed and the order of Rent Controller was set aside:' The landlord filed appeal before Hon'ble Supreme Court and their Lordships were pleased to agree with the observations of the High Court, and the appeal was dismissed. As far as the decision in the case of Fayaz Ahmed Khan v. Dr. Aqeet Ahmed, 1987 CLC 364, relied upon by the learned counsel for the respondent was concerned it was observed that:‑ "Once it was proved that the tenant had failed to pay rent by the specified time, payment made subsequently to the landlord, would not entitle him to get application for eviction dismissed on the ground that the rent had been paid." In the second decision of Mst. Malik‑un‑Nissa Begum v. Faqeer Muhammad, 1986 CLC 2029 it was observed by this Court:‑ "That the rent was sent by money order in the month of April, 1980 or deposited in Court after default was committed is of little significance. The tender of rent contemplated under section 15(2)(ii) of the Sind Rented Preniises Ordinance, 1979, should be within 15 days of the agreement or within 60 days of the rent becoming due." There is no cavil with the principles laid down in the case of Fayaz Ahmed Khan and Malik‑un‑Nissa Begum. However looking to the facts and circumstances of the case it is clear that the rent was offered to the rent collector of the respondent and he refused to accept the same, on the ground that the shop in dispute had been sub‑let to one Javed which fact the landlord could not prove before the Rent Controller, and issue regarding sub‑letting was decided against him. Neither any cross‑objection was filed nor this point of sub‑letting was taken up in this Court by the learned counsel for the respondent. It is, therefore, clear that Masoodullah A rent collector of the respondent had refused to accept rent on false pretext and, as such, the same was sent by the appellant by way of money orher. Of course, the rent for August and September was sent on 26th September, and 19th October, which was refused and, therefore, it was deposited, in Court in November, 1983, as admitted by the respondent and his rent collector. There was delay of few days in depositing the rent but it was the respondent and his rent collector who avoided to accept the rent and their conduct shows that they had deliberately created difficulties in the way of the appellant on the false pretext by not accepting the rent in the hope that some omission or slip on his part may enable them to crave out a ground for eviction. From the circumstances of the case, and the admissions made by the respondent and his rent collector Masoodullah it is proved that it was not a case of wilful default. In the above circumstances and the B case‑law cited by the learned counsel appearing for the appellant, I feel inclined to exercise discretion in favour of the appellant, as it was not a case of wilful default. I, therefore, allow this‑appeal, set aside the order of the Rent Controller and dismiss the ejectment application with no order as to costs. H.B.T./E‑25/K Appeal allowed.